Date of the judgment: February 24, 2023
Citation: Writ petition (civil) No. 172/2023
Petitioner: Adv. Vishal Tiwari, AOR. Abhigya Kushwaha, Adv. Sunita Yadav, Adv. Shailendra Mani Tripathi, Adv. Rahul Kumar, Adv. Manisha, Adv. Upendra Mani Tripathi, Adv. Aakar Shrivastav, Adv. Abhishek Jaiswal, Adv. Rajvardhan Singh.
Respondent: Union of India and Ors.
Bench: Hon’ble Chief Justice of India DY. Chandrachud, Hon’ble Mr. Justice Pamidighantam Sri Narasimha, Hon’ble Mr. Justice J.B. Pardiwala.
Related Laws: Article 32 of the Constitution, Maternity Benefit Act 1961.
Introduction
Menstruation is the biological process that occurs in the female of reproductive age. In this process, the lining of the uterus is shed through the vagina for 5-7 days. This process is a sign of reproductive health in females and is regulated by hormones. Due to the expelling of the lining of the uterus muscle, which causes pain. Menstrual pain(dysmenorrhea) is the discomfort or pain that women face during or before menstruation. This pain can be mild to severe and can interfere with the daily activities of the women.
Menstrual leave is a kind of leave in which a person may have the option to take paid or non-paid leave if they are unable to do work due to pain or if they are menstruating. Providing menstrual leave is a very controversial topic, the Supporters of menstrual leave compare menstrual leave with the functions of maternity leave and view it as a medium of gender equality.[1]
A menstrual leave policy was first applied in some sectors of jobs in Post-revolutionary Russia, but due to the increase in discrimination against women, the policy was removed in 1927.
In Kerala, menstrual leave has been granted to every girl studying in the school since 1912
In Indonesia, there are 2 menstrual leave given to every girl every month but there are no additional holidays provided to them.
In South Korea female employees are entitled to take menstrual leave and if they are not taking menstrual leave additional pay will be given to them.
In Europe there is only one country providing menstrual leave is Spain. Since February 2023 Spain has started giving 3-5 days of paid menstrual leave to every girl.
Facts
A Public interest litigation (PIL) petition was filed by Shailendra Mani Tripathi before the Supreme Court for the introduction of menstrual pain leave or period leave for female students and women employers throughout India. The petitioner wants to bring the attention of the court to the issue that faced many struggles in the past and needs to move forward and be settled appropriately. The plea stated that menstrual leave or period leave is disregarded by the government, society, etc. but some companies understand the problem faced by women during menstruation and start giving them menstrual leave such as Zomato, Swiggy, BYju’s, Magzter, etc which provided the paid period leave. It also emphasizes the introduction of women’s sexual, reproductive, and menstrual rights bills by Shashi Tharoor in which it was stated that sanitary pads will be provided for free by the government authorities. It was also stated that the Menstruation Benefit Bill,2017 was introduced in front of the legislature on the first day of the budget session but it was not taken into consideration saying that this is an ‘unclean’ topic. This shows the unwillingness of the legislature to take any action on the issue regarding menstrual rights into consideration.
Issues raised
- Whether the question of granting women the right to paid leave during their menstrual period falls under the scope of policymakers; or the legislature?
- Will the Right to paid leave during the menstrual period affect women’s employment badly?
- Should the Concern of offering paid leave to women during their menstrual period be settled in court?
CONTENTIONS
Arguments from the petitioner’s side (Adv. Vishal Tiwari, AOR. Abhigya Kushwaha, Adv. Sunita Yadav, Adv. Shailendra Mani Tripathi, Adv. Rahul Kumar, Adv. Manisha, Adv. Upendra Mani Tripathi, Adv. Aakar Shrivastav, Adv. Abhishek Jaiswal, Adv. Rajvardhan Singh.)
- Concern about offering paid leave to women during the menstrual period has not yet been taken into consideration by legislation
- The introduction of women’s sexual, reproductive, and menstrual rights bills by Shashi Tharoor in which it was stated that sanitary pads would be provided for free by the government authorities. It was also stated that the Menstruation Benefit Bill,2017 was introduced in front of the legislature on the first day of the budget session but it was not taken into consideration saying that this is an ‘unclean’ topic.
- There is a distinction between males and females in many laws and they should be treated equally by paying menstrual leaves.
Argument from Respondent’s side (Union of India and Ors.)
- If menstrual leave is provided to women employers then the companies who are hiring the employs will try to take more man than woman because there are fixed 3-5 days leave given to them which will affect the company work.
- The ratio of working women will decrease day by day because of the 3-5 leave of every women in every month that will decrease the number of women working and they will not get jobs, education because everything needs sincerity and if one day one girl and another day another girl will get leave how will they work.
- The respondent mentioned that menstrual leave requires the policy and governance because only legislation can make the laws and policies
Rationale
On Febraury 24,2023 the Supreme court of India refused to accept the petition by Shailendra Mani Tripathi seeking for paid menstrual leave for women all over the India. The bench Hon’ble Chief Justice of India DY. Chandrachud, Hon’ble Mr. Justice Pamidighantam Sri Narasimha, Hon’ble Mr. Justice J.B. Pardiwala gave their opinion by stating that by looking to the present matter of paid menstrual leave it needs more governance and policies so that they can be applicable, thus representation must be filed in ministry of women and child development.
This was said by the benches because since there is a policy dimension in the case the bench suggested the petitioner to approach to ministry of women and child development because if there is a need of laws and policies to be made for paid Menstruation leave then this can only done by the legislation, Judiciary don’t have any right on making laws and laws and the policies are made by the legislation of the country.
At present the Indian labour laws not directly expressing paid/unpaid leave on account of menstruation. But the states have power to implement such schemes for empowerment of women employees. Ex. Bihar government in 1992 under Bihar Vikas Mission under this schemes special leave for women employees. Before the India independence 1912, a government school in Kerala provided menstrual leave to its students during their annual examination and permitted them to attempt the same at later stage.
In 2017, a private member of parliament was introduced bill before the parliament of India, Lok Sabha by Mr. Ninong Ering (a former Lok Sabha Member of Parliament From Arunachal Pradesh) the bill facilitated women employees for menstrual leaves and also grievance redressal mechanism. but the bill was not tabled for discussion. In 2022, the same been tabled at budget session at state assembly, but the bill was withdrawn. Hence there is not legal position in this regard in India.
DEFECTS OF LAW
This is a violation of Article 14 inasmuch as this Act differentiates women in the name of federalism and state policies. Despite the fact that women suffer from similar physiological and health issues during their menstrual cycles, they are being treated differently in different states of India. However, women, having one citizenship, i.e., of India, must be treated equally and shall be conferred with equal rights, otherwise, it causes a violation of Article 14 of the Constitution of India”.
If we will see outside the country, there are many countries who adopted the menstruation leave policies which gave women’s equal right and opportunity to enjoy their rest period and can face pain easily in their home. This is also needed in India so that the women’s who are working and the girls who are studying get the opportunity to atleast have rest on their periods.
INFERENCE
From the above case comment we can see that how the 3bench of supreme court gave the proactive judgement about the menstrual leave by saying to approach the legislation so that there will be some laws and policies formed and the women gets their right of having rest on their painful days.
Building an inclusive work environment assumes great significance, as being emphasised, and experienced in recent times. Implementation of menstrual leave is a meaningful step towards breaking decades of stigma. It is important to adapt to the constantly evolving workplace practices and inculcate good practices to cater to the welfare of the organisation’s workforce. While organisations have only recently begun to implement the practice of providing menstrual leave and the extant Indian legal regime has also not addressed this aspect as of date, the Government of Bihar has been ahead of its time in this regard. Organisations should take steps to facilitate and maintain a safe and healthy work environment, which may be done by introducing policies, offering requisite benefits, extending support, and sensitising the workforce as a whole. Making way for open conversations and offering support to women in the workplace in relation to menstruation, without attaching any shame to it, will go a long run in creating the much-needed shift in the world of work….
Overall, the issue is highly sensitive and significant enough to be considered on social grounds. Menstruation, which is considered as an unclean topic even to discuss, we need a radical transformation in society so that this concern can effectively be dealt with, and women can attain their actual status of equality and can live in a place that is safe, healthy and where they can lead their life to the fullest.
- [1] Shailendra Mani Tripathi v. Union of India February 2023
- https://www.legalserviceindia.com/legal/legal/article-13551-critical-analysis-on-menstrual-leave-in-india.htm
- https://r.search.yahoo.com/_ylt=Awrx_fqgJHNmTCgMuB7nHgx.;_ylu=Y29sbwMEcG9zAzEEdnRpZAMEc2VjA3Ny/RV=2/RE=1718850849/RO=10/RU=https%3a%2f%2findiankanoon.org%2fdoc%2f8341083%2f/RK=2/RS=mi3sFJrbv6s25K9pXIpk5gOs55o-
- .
[2] https://www.scconline.com/blog/post/2023/03/07/looking-beyond-the-law-the-case-of-menstrual-leave-in-india/